When we talk with employers about employees taking Family and Medical Leave Act leave, we sometimes get questions about the impact of the employee’s absence on the business. We in turn explain that the FMLA is an entitlement, meaning that work burdens caused by the employee’s absence are not grounds for denying or ending leave. If the employer’s location is covered by the FMLA, the law assumes that the company has adequate resources to cover for the absent employee. This point was echoed in a new decision from the Seventh Circuit Court of Appeals in a case where the plaintiff alleged that she was placed on a performance improvement plan (PIP) and later terminated as the result of her taking intermittent FMLA leave.

In Wayland v. OSF Healthcare System, the employer and employee disagreed as to the amount of intermittent leave taken. The plaintiff claimed that she missed about 20%of regular working time when using FMLA leave, while the employer alleged that the absences were more like 10%. The plaintiff said that she was under constant pressure to meet deadlines and was issued the PIP following conclusion of FMLA leave because she was absent a substantial number of days and therefore could not meet these requirements. The employer claimed that she only missed a small amount of work, and that the PIP was based on work issues not related to her absences or the missed deadlines.

The Seventh Circuit reversed the district court’s dismissal of the claim, noting factual issues that must be resolved by the jury. The court said that regardless of pressures facing the business, employees cannot be reprimanded for deficiencies relating to their protected absences from work. “The employer must adjust its expectations to comply with the Act,” and failure to do so may constitute retaliation or interference with FMLA rights.

When an employee takes intermittent FMLA leave, managers must understand that the leave is legally protected, and that work issues caused by the employee’s absence cannot be the basis for disciplinary action. If employees who take FMLA leave are disciplined, the employer must clearly demonstrate that the cited issues relate to reasons other than the employee’s absence from work.

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